Friday, September 11, 2009

ESPECIALLY WHEN IT'S UNPOPULAR

There were at least 18 of them on his computer, probably many more. Images. Kiddie porn. Pictures of "a pre-pubescent minor." Engaged in sadomasochistic acts. He'd been downloading them for years. Add here and subtract there and you get a Guideline level 25, which at Criminal History Category I meant a Guideline range of 57-71 months.

What's the right sentence, the judge asked?

57 months, said the US Attorney. That's what the pre-sentence investigation report recommends.

A lot less said Adam Stall's lawyer. He's remorseful. He's in therapy. He accepts responsibility. He's ashamed and horrified at how he abused and harmed those children by having their pictures on his computer (even though they didn't know he had them; and you're right: that makes no sense except in the tangled world of criminal sentencing for child pornography). If you lock him up, the therapy won't take as well, and he'll maybe be the same sort of dangerous evil pervert he is now when he gets out. But if you allow him to stay out and get closely monitored treatment, the prognosis will be very good.

Why shouldn't I go way down? asked the judge. Well, you shouldn't because he probably had more than just these 18 pictures said the AUSA. Here are all these reasons, based on actual evidence in the record why you should said Stall's lawyer.

So the sentence: 1 day in custody. 10 years supervised release. Outrage and fumes from the AUSA who appealed the decision. And today, the Sixth Circuit affirmed. Boggs (Boggs!!) wrote the opinion. We might not have done that, he said, but the government should have made its arguments to the District Court.

Because the government at sentencing put forward almost no evidence for why a sentence within the Guidelines was warranted and did not raise the same cogent arguments it presents only on appeal, we affirm, holding that the district court’s explanation for the extent of its downward variance was sufficient in light of the record made before it.

Oh, and there's a dissent. Two sentences:

The one-day sentence in this case does not, with reasonable sufficiency, avoid disparity in sentencing or provide for general deterrence. I would therefore vacate the sentence as substantively unreasonable, and remand.

The government doesn't do its job and then bitches that the judges don't do its bidding. And, of course, mostly the judges do. But sometimes they show some guts and integrity.

A couple of days ago, I wrote about Connie Zemmelman, the judge who did the right thing, followed the law and the evidence, ignored the newspaper and the passion of the moment, and refused to certify Dai'Lahntae Jemison for trial as an adult even though the youth may have been responsible for causing the death of Robert Brundage.

To noone's surprise, the Toledo Blade, self-described as "One of America's Great Newspapers" (hey, if nobody else will say it . . . ) published a vicious editorial on Tuesday attacking Connie for obeying the law rather than the paper's publisher. The youth of Toledo

need to hear that they cannot hide behind their youth when they commit purposeful acts of violence.

Sure, that's not a legal basis for certifying Jemison as an adult. But it's what the Blade wanted her to do. And she should be voted out of office at the first opportunity, says the paper,for not doing it.

Being a judge is easy. The hours aren't bad, and you can pretty much set your own. You've got a staff to do all the actual thinking for you. You can just wear a robe and sit in a nice chair and boss people around while they're busy kowtowing and calling you "Your Honor." And if you suck up to the right folks, to the scaremongers and the money men and the power brokers, you can move up in the world of judging.

But being a good judge, is tough. It requires that you treat all who come before you with dignity and respect. It requires that you obey the law instead of the passions and prejudices of the moment. It requires that you do the right thing even when it's unpopular. It requires that sometimes you turn on the money men and the power brokers and the newspapers and the people who are trying to curry favor or just suck up in the hope that it will help somehow with the next case down the road.

And it means that you act without fear or favoritism. And you do the right thing.

Even for kids who kill and adults with kiddie porn on their computers. Especially for them.

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.
ALSO, PLEASE NOTE THAT THE STUFF I WRITE IS MINE ALONE. I STAND MORE OR LESS BEHIND IT, BUT I DO NOT SPEAK FOR ANY OTHER LAWYER OR ANY GROUP OF LAWYERS AND CERTAINLY NOT FOR THE OFFICE OF THE CUYAHOGA COUNTY PUBLIC DEFENDER.